Opinion
Board No. 07613288
Filed: July 31, 1995
REVIEWING BOARD:
Judges Maze-Rothstein, Kirby, and Smith.
APPEARANCES:
Ina Resnikoff, Esq., for the employee.
Kevin T. Daly, Esq., for the insurer.
On appeal the self-insurer seeks reversal of the hearing decision. It contends that the judge acted beyond the scope of her authority, was arbitrary and capricious and violated the self-insurer's due process rights by: 1) enjoining a G.L.c. 152, § 45, medical examination, 2) conducting a purported "contempt" hearing, 3) ordering attorney's fees for enforcement proceedings in Superior Court, and 4) by virtue of errors in the hearing decision itself. The self-insurer also seeks penalties under G.L.c. 152, § 14, against employee counsel. The employee denies there was error and requests affirmance of the decision, fees under G.L.c. 152, § 12A, for the successful enforcement orders in Superior Court, as well as § 14 penalties against the self-insurer.
The pertinent parts of § 45 are as follows:
After an employee has received an injury, and from time to time thereafter during the continuance of his disability he shall, if requested by the insurer or insured, submit to an examination by a registered physician, furnished and paid for by the insurer or the insured. The employee may have a physician provided and paid for by himself present at the examination. If a physician provided by the employee is not present at the examination, it shall be the duty of the insurer to file with the division a copy of the report of its examining physician or physicians if and when such report is to be used as the basis of any order by the division. If the employee refuses to submit to the examination or in any way obstructs it, his right to compensation shall be suspended, and his compensation during the period of suspension may be forfeited.
G.L.c. 152, § 45. The recent amendments to § 45 in St. 1991, c. 398, § 72, are not relevant to the issues in this case.
Section 14 provides in relevant part:
(1) . . . if any administrative judge or administrative law judge determines that any proceedings have been brought, prosecuted, or defended by an insurer without reasonable grounds:
(a) the whole cost of the proceedings shall be assessed upon the insurer; and
(b) if a subsequent order requires that additional compensation be paid, a penalty of double back benefits of such amount shall be paid by the insurer to the employee, and such penalty shall not be included in any formula utilized to establish premium rates for workers' compensation insurance.
If any administrative law judge determines that any proceedings have been brought or defended by an employee or counsel without reasonable grounds, the whole cost of the proceedings shall be assessed against the employee or counsel, whomever is responsible.
G.L.c. 152, § 14, as amended by St. 1991, §§ 36, 37, 88, is deemed procedural. See St. 1991, § 107.
Section 12A provides in relevant part:
If on appeal to the appeals court or the supreme judicial court pursuant to section twelve the claimant prevails, the court shall allow the claimant, in addition to the award in the judgement, an amount equal to the reasonable cost of his attorney's fees, briefs and other necessary expenses that result from the appeal. When any party in interest obtains an enforcement order from the superior court department of the trial court pursuant to said section twelve, the court shall also allow the party the reasonable cost of attorney's fees, briefs and other expenses provided for by this section.
G.L.c. 152, § 12A, as added by St. 1959, c. 585, and amended by St. 1972, c. 742, § 6; St. 1985, c. 572, § 27. (Emphasis supplied.)
Finding error in the judge's attempt to marshal and contain the contentious proceedings on this matter and in the decision itself, we affirm in part, vacate in part, and remand the case in accordance with the following decision.
This case derives from the self-insurer, City of Salem's (Salem) request to discontinue or modify the employee's weekly compensation benefits. Ms. Carter, a nurse's aid, injured her back on November 22, 1988 while lifting a patient at the Shaughnessy Rehabilitation Hospital. The self-insurer initially accepted liability for the injury. It paid § 34 temporary, total incapacity benefits at the rate of $158.52 per week based on an average weekly wage of $237.79 as well as §§ 13 and 30 medical benefits.
Following a July 16, 1990 conference on the discontinuance complaint, the judge allowed the "employee's claims for rehabilitation therapy from Spaulding Rehab for therapy as needed." (August 6, 1990 Order of Modification.) On August 6, 1990, the judge assigned an earning capacity of $150.00 reducing Carter's compensation to $58.52 weekly pursuant to G.L.c. 152, § 35, effective on September 15, 1990 after the employee had completed the Spaulding program. (Dec. 3.) The judge awarded a fee in the amount of $948.94 plus expenses to employee counsel pursuant to § 13A. (August 6, 1990 Conference Order.) Both parties appealed the order. This innocuous conference event began the complicated and vexing procedural history and substantive internecine war that underpins the self-insurer's appeal.
On September 11, 1990, the employee sought enforcement of the August 6, 1990 order before the Superior Court pursuant to G.L.c. 152, § 12. (Dec. 3.) Specifically, the employee claimed that Salem refused to pay for the one month inpatient pain management program at Spaulding. The court found it premature to enforce payment for the treatment because the court did not know what plan was recommended and whether Salem had actually refused payment. (Self-insurer's Ex. A and Ex. D.) For that reason, the court ordered counsel for Salem to make its intentions known once Spaulding had evaluated the employee and after it had indicated a recommended treatment plan. Id. The Superior Court further ordered that if thereafter, Salem refused to pay or did not respond within two business days from receipt of the proposed treatment plan, the case would be promptly scheduled for further hearing on October 12, 1990. Id.
Section 12 provides in relevant part:
(1) Whenever any party in interest presents a certified copy of an order or decision of a board member or of the reviewing board and any papers in connection therewith to the superior court department of the trial court for the county in which the injury occurred or for the county of Suffolk, the court shall enforce the order or decision notwithstanding whether the matters at issue have been appealed and a decision on the merits of the appeal is pending.
* * *
(3) In rendering an order or judgement under this section or following a rescript of the supreme judicial court after an appeal from such an order or judgement the court shall award costs to the prevailing party to the assessed as in actions at law. This paragraph shall not authorize the awarding of costs to or against the industrial accident board or reviewing board.
G.L.c. 152, § 12. See St. 1991, c. 398, § 32A; St. 1985, c. 572, § 26A.
Superior Court and Appeals Court rulings have been appended as exhibits to the parties' briefs. There is no contest as to the accuracy or veracity of said documents.
After the reevaluation on September 13, 1990, Spaulding notified Salem in writing that Ms. Carter was recommended for the pain management program. On October 12, 1990, counsel for Salem sent a letter to Carter and to Spaulding stating that it agreed to pay "all expenses incurred for the necessary and reasonable treatment of Ms. Carter's industrial injury." (Self-Insurer's Ex. D.)
Apparently Spaulding did not consider this adequate assurance of payment and Carter was not admitted to Spaulding.
However, sometime in early September, Salem had arranged for an October 9, 1990 medical examination of Ms. Carter pursuant to G.L.c. 152, § 45. See supra n. 1. (Text of § 45.) On September 18, 1990, in response to the § 45 request, Carter filed a motion with the administrative judge for an injunction to enjoin the insurer's defensive medical exam. On September 24, 1990 the administrative judge allowed that motion and awarded $1,320.00 for employee counsel fees. Salem's request for a hearing on the motion was denied.
She had previously been examined three times by a physician designated by Salem, the last time on September 15, 1989.
When Carter did not appear for the October 9, 1990 § 45 medical examination, Salem terminated her weekly compensation benefits. The employee then filed a motion for contempt with the administrative judge. On November 27, 1990, the judge heard the motion on the record. She issued an amended conference order two days later on November 29, 1990, reinstating § 34 temporary total incapacity compensation at the rate of $158.52 per week from September 15, 1990 and continuing. (Dec. 4.) The judge once again ordered the self-insurer to pay §§ 13 and 30 medical benefits, including the Spaulding Rehabilitation Program, "as defined by Spaulding." Id. In addition, the self-insurer was ordered to curtail communication with Spaulding until the employee had completed the pain program "based on conflicting stories of obstruction and confusing contacts between the self-insurer and the pain clinic at Spaulding." Id. Further, the judge ordered Salem not to schedule a § 45 exam until 30 days after the employee completed the program. The judge ordered Salem to pay a $951.16 § 13A legal fee to employee's counsel, as well as outstanding fees previously awarded on September 24, 1990.
As noted above. Carter was evaluated by Spaulding on September 13, 1990 and recommended for its pain program. Curiously, three days after terminating the employee's benefits as of October 12, 1990, counsel for Salem informed Carter and Spaulding that it would pay for "necessary and reasonable treatment" for the industrial injury.
The judge specifically discussed the order for treatment at Spaulding with the parties and they were aware the August 6, 1990 conference order was designed to give Carter "the prescribed therapy in order to enable her to return to work as soon as possible while being mindful of the self-insurer's claim to discontinue or modify benefits." (Dec. 3.)
The judge stated that she did not mean to inhibit a § 45 exam. She noted that Salem sought unavailable relief from her order from various commissioners and the reviewing board. (Dec. 4.)
Next the self-insurer found itself in Superior Court seeking a preliminary injunction to bar enforcement of the November 29, 1990 order. It averred the November 29 order deprived it of due process because the administrative judge had no power to grant an injunction or to entertain a contempt motion. On January 25, 1991, the Superior Court judge denied Salem's requests and ordered it to comply with the August 6, 1990 and November 29, 1990 orders of the Department of Industrial Accidents (Department) within 14 days, and to inform Spaulding within 10 days that it would pay for Ms. Carter's inpatient pain program. (Self-Insurer's Ex. D.) The Superior Court, limited by G.L.c. 152, § 12, to enforcement of the Department's orders, declined to address the substantive issues raised by the self-insurer, including those regarding attorney's fees and deferred their resolution to the reviewing board. See Biagini's Case, 22 Mass. App. Ct. 103, 104 (1986); supra n. 4 (relevant text of § 12).
On February 15, 1991, the Superior Court denied Salem's Motion for Reconsideration and ordered compliance with the administrative judge's orders, including fees. (Employee's Ex. 7, 12.) On February 28, 1991, a single justice of the Massachusetts Appeals Court denied the self-insurer interlocutory relief, finding no abuse of discretion in the Superior Court. The Appeals Court also affirmed the order to comply with the administrative judge's orders. See (Dec. 4). The single justice further ordered that the Spaulding program be undertaken without delay and that within a reasonable time thereafter, the employee may be required to submit to a physical examination. (Employee's Ex. 8.)
At long last, Ms. Carter was admitted to the inpatient Spaulding pain program from March 25, 1991, to April 22, 1991. See (Dec. 8; Tr. 77.) On April 1, 1991, the matter was first scheduled for a hearing on the merits. The administrative judge refused to go forward until she had proof that Salem had paid all of its invoices. (April 1, 1991, Tr. 2-3) The evidentiary hearing was conducted several months later, on September 19, 1991. Depositions were completed by November 26, 1991.
The employee was an inpatient at Spaulding on this date.
Salem paid outstanding bills to Massachusetts General Hospital on April 1, 1991 and prior to a scheduled May 1, 1991 contempt hearing in Superior Court, it honored remaining outstanding bills that existed at that time. (Employee's Brief, at 7, 28.)
On or about January 15, 1992, employee counsel requested that the judge delay issuance of the decision because certain medical invoices had not been paid contrary to the self-insurer's assertions that all invoices were current. (Employee's Ex. E-1.) The judge allowed the employee's motion but nevertheless issued her decision about one month later, on February 20, 1992.
The judge found the employee sustained an industrial injury on November 22, 1988. (Dec. 13.). She adopted the opinion of employee's expert, Raymond Mackiewicz, M.D., that Ms. Carter suffered from causally related trochanteric bursitis which disabled her both totally and partially at different times. Id. The judge ordered §§ 13 and 30 medical benefits, specifically including the "reasonable and necessary" Spaulding treatment that Ms. Carter required to enable her to cope with her chronic pain. (Dec. 7, 9, 13-14.) The administrative judge discredited Ms. Carter's testimony that she lacked transferrable skills and relied on Dr. Mackiewicz's opinion that, as of November 12, 1991, the employee could work in a capacity consistent with heavy lifting restrictions, but not in her former employment as a nurse or nurse's aide. (Dec. 8-9, 12, Mackiewicz Dep. 30.) (Opining Ms. Carter could work after retraining). The judge noted a surveillance video entered into evidence, which showed the employee walking a long distance, but credited the opinions of both Salem and Carter's experts that this form of exercise is consistent with therapy for trochanteric bursitis. (Dec. 8-9.) The judge neither credited nor adopted Dr. Sandra Thomson's opinion, deposed for the self-insurer, because of the conflicting testimony about the completeness of her medical exams. (Dec. 8.)
Based on these findings, the judge ordered discontinuance of § 34 temporary total weekly compensation as of December 1, 1991. (Dec. 15.) She ordered payment of § 35 partial incapacity benefits based on the employee's $238.00 average weekly wage with a $150.00 earning capacity from December 2, 1991 to March 2, 1992. (Dec. 15.) Roughly 10 days after the judge filed her February 20, 1992, decision, she terminated all weekly compensation payments as of March 3, 1992. Id.
The parties stipulated to an average weekly wage of $237.79, not $238.00. (Dec. 5.)
This case illustrates the challenging and difficult task of fashioning adjudicatory remedies where a matter is hotly and contentiously contested by one or both parties. Despite the administrative judge's earnest efforts, we find error in both the conduct of the proceedings and in the decision itself and, therefore, we recommit for further findings consistent with this decision.
There are a number of issues, some of which are meritorious, some which are not, and others of which are mooted. We address each in turn.
Injunction of § 45 Medical Examiner
We first examine whether the administrative judge's grant of an injunction to bar the self-insurer's § 45 examination exceeded the scope of the administrative judge's authority and violated Salem's due process rights. We conclude that it did.
The Department of Industrial Accidents has no jurisdiction or authority under G.L.c. 152, the Workers' Compensation Act, to afford the equitable remedy of injunctive relief. The Supreme Judicial Court and the Superior Court have original and concurrent jurisdiction of civil actions where an injunction is sought, unless a statute provides otherwise. G.L.c. 214, §§ 1-2; Mass. R. Civ. P. 65(a)-(d); see Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980) (discussing injunctive relief); see also G.L.c. 152, § 65L (commissioner of insurance may seek injunction from supreme judicial court where insurer fails to comply with commissioner's order or ruling).
The language of § 45 is mandatory: "[A]fter an employee has received an injury and from time to time thereafter . . . he shall, if requested by the insurer or insured, submit to an examination by a registered physician. . . ." G.L.c. 152, § 45 Where the language of a statute is plain and unambiguous, it must be interpreted in accordance with the ordinary, natural and approved meaning of the words. Conroy v. City of Boston, 392 Mass. 216, 219 (1984); Hashimi v. Kalil, 388 Mass. 607, 609 (1983). The word "shall" is ordinarily construed as having a compulsory, imperative and inescapable obligation or mandate. Hashimi v. Kalil, 388 Mass. at 609; Opinion of the Justices, 300 Mass. 591, 593 (1938).
G.L.c. 152(8) (2)-(5) and 452 Code Mass. Regs. 1.06(1) provide for certain procedures to be followed before an insurer or self-insurer may suspend compensation, as Salem did in this case. As the employee did not appeal the decision on the issue of an illegal termination, we do not address the matter. Moreover, the matter is moot as the benefits were restored in the November 29, 1990 conference order.
Of interest, however, is that under Mass. R. Civ. P. 37(b) (D) provides that failure to submit to a physical or mental examination may not be treated as contempt of court. The language of § 45 is mandatory and, therefore, we need not address any relationship, if there is one.
In spite of the fact Ms. Carter was scheduled to be reevaluated by Spaulding two days following the September 11, 1990 Superior Court proceeding the employee was required to have a § 45 exam at Salem's request. G.L.c. 152, § 45; see supra n. 1 (text of § 45.)
Although we do not agree with the self-insurer that it could forestall compliance with the August 6, 1990, conference order until it got its § 45 exam, we do agree that the self-insurer had a right to gather its medical evidence on the contested issues of present disability and the reasonableness and necessity of treatment as a matter of due process in order to properly prosecute its appeal of the conference order at the de novo hearing. See Stacey v. North Shore Children's Hosp., 8 Mass. Workers' Comp. Rep. ___ (1994) (discussing due process requirements before the Board as requiring that all parties have an opportunity to gather and present evidence supporting or defending a claim). However, Dr. Thomson, the self-insurer's expert, examined Ms. Carter on May 29, 1991, after the Spaulding treatment and prior to the full hearing. The self-insurer deposed its doctor on November 26, 1991. The violation was thereby mooted. Moreover, Salem cross-examined the employee's expert and had a full and fair evidentiary hearing on all issues, including the medical ones.
Pursuant to G.L.c. 152, § 17, prompt compliance with "all orders or decisions" is mandatory, with the first payment to be received "within fourteen days of issuance of any such order." Amended by St. 1953, c. 314, § 6; St. 1985, c. 572, § 32.
Ultimately, the § 45 examination was delayed but not totally prohibited. Thus, the self-insurer was able to protect its position by submitting defensive medical expertise of its own choosing. While we don't condone the erroneous injunction, it is mooted under these facts. Compare Stacey, supra (where the due process prohibition was neither cured nor ameliorated prior to issuance of the decision). Contempt
There may be other circumstances where the deprivation of a right to present medical evidence is so prejudicial that an eventual cure would not vitiate the deprivation. However we emphasize, in this case, the self-insurer had the opportunity to present all medicals it wished and to fully cross-examine the employee's experts.
The next issue is whether the administrative judge erred when she conducted a "contempt" hearing and issued the November 29, 1990, Amended Order that reinstated § 34 benefits from the prior modification to § 35 benefits.
Civil contempt is an equitable action where the power of a court is used to secure an aggrieved party the benefit of a decree or to coerce compliance with an order where there is undoubted disobedience of a clear and unequivocal command. United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 36 (1972). A court has the inherent power to compel obedience to its decrees. New England Novelty Co. v. Sandberg, 315 Mass. 739, 746 (1944).
Unlike a court, the Workers' Compensation Act, G.L.c. 152, provides that the Department does not have the power to enforce its own judicial orders. Rather, persons seeking enforcement must apply to the Superior Court under the provisions of G.L.c. 152, § 12. See supra n. 4 (provisions of § 12); see also Manchester v. Department of Env. Quality Eng'g, 381 Mass. 208, 212 (1980); Mass. R. Civ. P. 65.3(a)(c) Reporters Notes (1982).
If the Amended Order was in the nature of a "Contempt" decree the judge exceeded the scope of her authority for lack of subject matter jurisdiction. See United Factory Outlet, Inc., 316 Mass. at 36. However, if the Amended Order followed a status conference to place the employee where she was status quo ante the self-insurer's failure to pay for the Spaulding treatment, the judge did not err, since the condition precedent to the modification from § 34 total to § 35 partial benefits on September 15, 1990 (i.e., the anticipated pain program completion date) had not yet occurred.
The proper remedy for an employee to enforce an order where there is non-compliance is to apply to the Superior Court. G.L.c. 152, § 12. See supra n. 4. On remand, the administrative judge is to clarify the nature of the proceeding. We note that while the proceeding was referred to as a "contempt" hearing, the judge called her ruling an "amended conference order." Where the previous conference order was not complied with, if the proceeding were in the nature of a status conference because conditions precedent to an earning capacity had not occurred, it would not be erroneous to issue an amended conference order under our equitable powers. Utica Mutual Ins. Co. v. Liberty Mut. Ins. Co., 19 Mass. App. Ct. 262, 265 (1985). Further, the issue of any contempt is now moot, as the pain treatment at Spaulding has taken place and as we affirm the judge's decision that it was reasonable and necessary as discussed below. (Dec. 14-15.)
Attorney's Fees
The self-insurer contends that the administrative judge erred in awarding employee counsel $1,320.00 in fees under § 13A for the September 24, 1990 injunction "proceeding." Under the applicable provisions of G.L.c. 152, § 13A, an administrative judge is authorized to order payment of employee's legal fees. G.L.c. 152, § 13A(2) and (3), as in effect prior to St. 1991, c. 398, § 35 (authority to award fees plus reasonable expenses where insurer seeks to discontinue or reduce benefits and employee "prevails" pursuant to an "order" of an administrative judge). See St. 1985, c. 572, § 28A, as amended by St. 1987, c. 691, § 8. The statute provides a fee award formula, but also affords the judge discretion to increase or decrease fees based on the complexity of the dispute or the effort expended by the employee's attorney.
Section 13A provides in pertinent part:
Whenever an insurer files a complaint to reduce or discontinue an employee's benefits but withdraws such complaint prior to five days before a hearing pursuant to section eleven, or whenever an employee prevails pursuant to an order modifying or denying modification or discontinuance of weekly compensation or other benefits, such insurer shall pay an attorney's fee sufficient to defray the reasonable costs of counsel retained by the employee. Such fee shall be an amount equal to two times the average weekly wage in the commonwealth at that time, plus necessary expenses; provided, however, that an administrative judge may increase such fee based on the complexity of the dispute or the effort expended by the attorney . . . or (ii) the employee prevails at such hearing [ sic], the insurer shall pay an attorney's fee sufficient to defray the reasonable costs of counsel retained by the employee. Such fee shall be an amount equal to seven times the average weekly wage in the commonwealth at that time, plus necessary expenses; provided, however, that an administrative judge may increase such fee based on the complexity of the dispute or the effort expended by the attorney.
An employee "prevails" for purposes of § 13A(1)-(3) when compensation is ordered or is not discontinued at such proceeding, except where the employee appeals a conference order from which the insurer took no appeal and upon which the judge does not order benefits beyond those paid before said order. 45A Code Mass. Regs. 1.19(4). Since the employee's motion for an "injunction" is a plea for relief with no statutory response in c. 152, there was similarly no statutory authority for an award of employee counsel fees. We, therefore, reverse the order to pay attorney's fees for that proceeding in the amount of $1,320.00.
With exception of $1,320.00 fee awarded with the injunction motion, which we have found is void, we summarily affirm the remaining attorney fee awards. See G.L.c. 152, § 13A.
To the extent that outstanding bills remain for enforcement proceedings brought by the employee in Superior Court, Ms. Carter must apply to that court for relief. General Laws c. 152, § 12A provides that the court shall allow the party seeking enforcement of an administrative judge's order in the Superior Court the reasonable amount of attorney's fees, briefs and other necessary expenses. See supra n. 4 (provisions of § 12A); see also Arbogast v. Employer's Ins. of Wassau, 26 Mass. App. Ct. 719, 723 (1988) (discussing attorney's fees). The statute must be interpreted in accordance with the ordinary meaning of the words if there is no ambiguity. Conroy, 392 Mass. at 219. We find no ambiguity in the provisions of § 12A, enforcement proceedings and attendant fees must be pursued in the Superior Court.
Hearing Decision
The judge was free to adopt the opinion of Dr. Mackiewicz, employee's expert, over that of Dr. Thomson, whose opinion the judge found flawed because of the incompleteness of her exams. See Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337, 341 (1993), citing Amon's Case, 315 Mass. 210 (1943). Her subsidiary findings on the occurrence of an industrial accident, causal relationship of the disability to the work injury and the reasonableness and necessity of the medicals, including the Spaulding treatment disclosed reasoned decision making to adequately provide a basis for proper appellate review. Robinson's Case, 416 Mass. 454, 457-458 (1993); Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). Accordingly, we summarily affirm the decision of the administrative judge on those issues.
We briefly comment on several other issues raised by the self-insurer. We find Salem's arguments regarding rescheduling of the hearing date until September 1990 from April 1990 lacks merit since the case could not, in any event, proceed on the first scheduled April hearing date while the employee was inpatient at Spaulding. Further, the allegation that the subsidiaries on Dr. Thomson's testimony were inadequate is baseless and is likewise summarily dismissed. We further find Salem's contention that the judge erred when she delayed the issuance of her decision for approximately one month at Carter's request in order to receive proof that outstanding medical bills were paid lacks merit, under the circumstances present here, and summarily dismiss this argument as well.
We do, however, agree with Salem that the dates when § 34 incapacity benefits were terminated and § 35 partial incapacity compensation was ordered have no evidentiary basis in the record. It is elementary that the dates on which compensation begins or ends must have significance in the evidence. See Leveille v. A.T. T. Technologies, 4 Mass. Workers' Comp. Rep. 177, 178 (1990). As they stand, the subsidiary findings do not support her conclusion that temporary total incapacity ended about a week after the last deposition was submitted, nor do they support the conclusion that all partial incapacity ended on March 2, 1992 about 10 days after the filing of her decision. See Altshuler v. Colonial Hilton Hotel, 7 Mass. Workers' Comp. Rep. 62, 64-65 (1993). Conclusions in a decision are meaningless unless adequately supported by subsidiaries with evidential support. Kilcullen's Case, 4 Mass. Workers' Comp. Rep. 182, 184 (1990).
On recommittal, the judge is to make findings on when total and partial incapacity begins or ends from at least the completion date of the Spaulding treatment onward, after consideration of and findings on Ms. Carter's continuing pain and physical limitations in light of her background, training, experience, and other factors as required by law. Scheffler's Case, 419 Mass. 251, 256 (1994); Frennier's Case, 318 Mass. 635, 639 (1945); Medley v. E.F. Hauserman Co., 7 Mass. Workers' Comp. Rep. 97, 99 (1993) and cases cited.
Penalties Under § 14
Section 14 of c. 152 provides for penalties including the whole cost of the proceedings against an insurer, an employee, or counsel, whoever is responsible for actions brought on unreasonable grounds. As the allegations in this case concern conduct before the administrative judge, on remand she is to determine whether or not such penalties are justified or appropriate. See Footnote 2, supra; G.L.c. 152, § 14(1)(a)(b). Any penalties for conduct before the Superior Court shall be assessed by that body if appropriate.
The judge should also be aware that G.L.c. 152, § 17 prohibits the assessment of penalties "during the pendency of any appeal." (Emphasis added.) However § 14(1)(a) and (b) permits a retrospective appraisal for penalty purposes for "any proceedings brought, prosecuted or defended by an insurer without reasonable grounds. . . ."
So ordered.
Judges Kirby and Smith concur.